Electronic Document retention

Well this particular topic has quite a bit of personal connection for me - electronic document retention and this impacts the IT departments in businesses. Several years ago a family member became involved in a legal dispute with their employer. The family formally filed a complaint and was thus legally protected at the time from retaliation, persecution and job termination; however after waiting several months they decided to terminate his position. Being keenly aware of the termination tactics employed by this organization (which were pretty slick actually). The organization would inform an employee that they would need to see an HR representative located in an adjacent building to their own (regardless of where their actual HR representative was located). I have a point, I swear. This ruse would provide the firms IT and security team the opportunity to inventory, scan and remove any items they determined were Intellectual Property or work product of the firm - this was often anything that could be construed to be potentially damaging to the firm: electronic documents, emails, chat records, paper documents and even sometimes personal documents in briefcases, backpacks and other items in employee offices. Having been tipped off by another sympathetic employee, this family member (will call him Mr. X) quietly excused himself from the HR rep sent to escort him by requesting some time to use the restroom. The HR rep provided him with directions to the room and then left - fully expecting him to proceed directly behind them. Instead Mr. X quickly gathered all of his personal items and documents and proceeded to his vehicle. Before being able to depart Mr. X was confronted by a member of the security team who attempted to remove his personal items from Mr. X. Mr. X stated the items were his personal belongings and that any attempt to remove them could be construed as assault. Security was not content with this rebuff (again I swear this all is relevant) and called in a code red to the local law enforcement - code red's are reserved for ... well you guessed it really bad and possibly violent confrontations (angry employees, gun-toting maniacs ..etc) not disagreements with employees over documents. As the officer who arrived on the scene stated "it's not like his carrying a computer out of here". The officer requested the organization identify what they considered to be work product or intellectual property - the security team couldn't positively state that any items belonged to the organization, then they were promptly chastised by the officer for calling in a code red and the officer asked Mr. X if he would like to file an assault charge against the security team for attempting to grab the personal items from him and preventing Mr. X from departing. The moral of the story was that the firm had no document retention policies that would've enabled them to accurately identify missing items in this type of situation, thus avoiding confrontation because there would've been copies and accurate accounting of items - electronic and paper.

By applying policies regarding where personal vs. organizational documents and emails are stored, either electronically or paper document storage , requiring documents, emails and chats be appropriately labeled will contribute to avoiding confusing circumstances regarding what is and isn't proprietary information. This particular case became even more complicated when during the legal negotiations (discovery process) the firm stated that personal notes and items being introduced during the meetings should be classified as proprietary or sensitive work product thus mitigating its ability to damage the defendant (them). In order to provide some level of legal guidance for organizations seeking to formulate or revise their policies the American Bar Association (ABA) has devised a sample policy. Although Mr. X's particular case did set some legal precedent I reference another case "Zubulake vs. UBS Warburg LLC" were Mrs. Zubulake who was filing a gender discrimination case was awarded 30 million after the courts found that UBS deleted emails and other communications from the organization that affirmed her claims, on the other side in Teague vs. Target, Target had the case dismissed because Mrs. Teague destroyed her personal computer she used for working from home prior to the defendant, Target, having the opportunity to seek material pertinent to their case (during discovery). If you take a look the ABA link I posted you'll see that it carefully describes what types of documents are considered be under subject to the retention and tracking guidelines and requires employees to acknowledge they understand and agree by signing. Also take the steps necessary to devise an auditing, acceptable use, destruction and classification of all Electronically Stored Information (ESI) - that's the official term for anything not printed or scribbled on paper. In the end the courts determined in Mr. X's case that unless the firm could identify how the documents in question were intellectual property or how their disclosure in court could impact the confidentiality of clients (work product) i.e. tell us why you think these emails and other electronic documentation is related directly to your firms business and is un-related to this case - which it wasn't. The firm settled out of court for an undisclosed amount (the details are sealed...).